SCOTUS may skirt constitutional issue of cross in national preserve

The fate of a 7-foot cross erected 75 years ago as a war memorial in the middle of 1.6 million acres of Mojave Desert has been making its way through the courts for 10 years. And although critics claim the cross in a national preserve violates the Constitutional separation of church and state, the U.S. Supreme Court is unlikely to base its final decision on any provisions of the First Amendment, according to Prof. Peter Linzer of the Law Center and Kelly Shackelford of the Liberty Institute.

Linzer and Shackelford squared off in a lunchtime debate sponsored by The Federalist Society at the Law Center, and they shared a common view that the nation’s highest court would avoid the broader issue of church and state and focus instead on the narrow question of whether a proposed land swap of the site would violate a court order to take it down.

By way of background, Shackelford explained the cross was erected in 1934 by “crusty old veterans who just wanted to remember their buddies.” Its significance was not as a religious symbol, but as a heartfelt memorial to those who sacrificed their lives in World War I, said the attorney and president/CEO of the Liberty Legal Institute. The organization, a non-profit founded to protect religious and First Amendment rights, is representing the VFW and numerous other veterans groups in the legal battle. “It’s bad enough to tear down a monument, but outrageous that it can’t be given back to the veterans who put it up,” he said.

The case wound up before the Supreme Court last October after a landowner had offered to give the government five acres of land within the national preserve boundaries in exchange for the 1-acre monument site to be owned by the VFW. The government agreed, but a federal court contravened, saying the monument must go. The cross itself has been covered for years, first under a tarp and now in a plywood box. “A lot of our work has been to convince veterans not to go up there with weapons and take the box off,” Shackelford noted, drawing laughter from the audience of students and faculty.

The veterans’ remote cross pales in comparison with religious acts and symbols on government property and memorials throughout the country, including the Supreme Court, he said. “It’s laughable that it is a violation of the establishment clause,” he said. “The government has done nothing with it for decades and, besides, (the cross) is owned by the veterans, not a government agency.”

Linzer said the issue is far from a laughing matter to millions of American Jews, Muslims, Buddhists and followers of other religions, who see the cross only in Christian terms and not as the symbol of sacrifice painted by Shackelford and others. And then there are the non-believers, Linzer said. “It’s pretty clear that non-believers have rights too. It’s important to realize that for a lot of people this is a very important issue.”

The professor noted that the “land transfer” remedy is reminiscent of many segregation cases of the 1950s and 60s. The courts frowned upon the practice of simply giving segregated properties to private organizations or individuals, thereby allowing them to skirt the law. “The decisions were very clear,” Linzer said. “You cannot do it.” He said the question of the small cross in remote land is a close call, but added, “I think it is wrong.”

Shackelford said if the order to tear down the cross stands, “There will be no reasonable stopping point.” He claimed that the next step would see crosses removed in Arlington National Cemetery, including the Canadian Cross of Sacrifice, and countless veterans memorials would face demolition in every state of the union. “If all this is unconstitutional now, what do you do? The cure is exactly what they have done here: give it back to those who put it up.”

“I don’t want to denigrate peoples’ beliefs,” Linzer said in reference to existing religious symbols. “But the founders knew the dangers of religion. They had been through religious wars and persecutions and wanted government out of it.” In his view, the crosses of Arlington should remain inviolate. But constitutional protections should not extend to a symbol constructed by private interests on public land.